comment 12 Sep 17

Montenegro Risks Another War Crimes Trial Failure

After a series of embarrassing acquittals, Montenegro is launching another flawed war crimes trial, with prosecutors risking failure again because of the desire to get results that will please the EU.

Jovo Martinovic BIRN Podgorica
The Special Prosecution in Podgorica. Photo: tuzilastvo.me.

As Montenegro struggles along its route to EU accession, one of the conditions it needs to meet is dealing with its troublesome 1990s past and punishing those guilty of war crimes.

Montenegro’s prosecutors have so far failed dismally in dealing with the most egregious war crimes, which include a massacre of Kosovo Albanian civilians at the hands of the Yugoslav Army in Kaludjerski Laz, the ethnic cleansing of Bosniaks in the border region of Bukovica, and deportations of Bosniak refugees (and their subsequent massacre by Bosnian Serb forces).

The Montenegrin courts acquitted all the defendants in these cases.

Now the Special State Prosecutor’s Office is launching another case that may bring further embarrassment to the country, this time one that has been transferred from Serbia.

On Tuesday in the High Court in Podgorica, Montenegrin national Vlado Zmajevic will stand trial for war crimes against the civilian population in Kosovo.

According to Montenegro’s special prosecutor, Zmajevic is guilty of killing four Kosovo Albanian civilians in the village of Zegra/Zheger in Kosovo’s Gjilan/Gnjilane municipality on March 30, 1999.

The prosecutor claims in the indictment that on that day “at the time of the armed conflict between the so-called Kosovo Liberation Army and Yugoslav Army troops”, Yugoslav Army volunteer Zmajevic breached the Geneva Conventions by killing civilians who weren’t taking part in the conflict and looted their property.

Significantly for the case, it states that he was “of sound mind and cognisant of his actions”.

The prosecutor also describes various details of the atrocities and sets out Zmajevic’s alleged confession of responsibility for the crimes before a military tribunal in Pristina and his later denial of these crimes upon his arrest in Montenegro.

The prosecutor refers to Hague Tribunal documents about the bodies’ exhumations in the village and concludes that “from the statements of witnesses and the [Serbian] Defence Security Agency, it proceeds that at the critical time there was armed conflict between an armed military organisation, the so-called Kosovo Liberation Army, and Yugoslav Army troops, and that Zmajevic was a Yugoslav Army infantryman”.

But this ‘revelation’ by the prosecutor about the armed conflict in Zegra/Zheger is contradicted by none other than the Hague Tribunal itself.

In its final judgement in the case against generals Vladimir Lazarevic, Nebojsa Pavkovic and Sretan Lukic in 2014, the Hague Tribunal’s appeals chamber concluded there was no evidence of any Kosovo Liberation Army activity in the village.

“The Chamber finds that the VJ [Yugoslav Army] and MUP [Serbian interior ministry forces], as well as other irregular forces, drove Kosovo Albanians from the village by the use of threats, beatings and killings, creating a climate of fear,” the verdict said.

It also established that houses in Zegra/Zheger “were looted and burned down by the VJ, reinforced by armed civilians and other irregular forces”.

Personality disorder

The Zmajevic case is fraught with other difficulties.

When he and six other Yugoslav Army reservists were arrested on April 1, 1999, they were suspected of being responsible for the deaths of seven of the 13 civilians that the Serbian forces killed in Zegra/Zheger.

Zmajevic and the others were initially arrested for looting and insubordination as the Yugoslav Army command was unable to rein them in, as stated in many internal reports which are now publicly available.

Shortly afterwards, the military prosecutor in Pristina pressed charges against Zmajevic alone, and a military tribunal sent him to the Nis Military Hospital on June 5, 1999 for psychiatric observation, while the others were released.

The hospital’s findings describe Zmajevic, who also had fought in Vukovar in Croatia in 1993 and had convictions for attempted murder and extortion, as “emotionally tense and suffering from anxiety”.

The report concludes that his mental state at the time of the offence was “significantly impaired” and that he has a “personality disorder/psychopathic character”.
Zmajevic subsequently received psychiatric treatment until as late as 2006.

All this proved irrelevant to the Montenegrin prosecutor who, eager for ‘results’, ignored these reports and labelled Zmajevic as “being of sound mind and cognisant of his actions” at the time of the alleged crimes.

The prosecutor also rejected the defence lawyer’s request for an additional psychiatric examination - a unique exemption, as so far every war crimes indictee in the former Yugoslavia has had to undergo such tests.

The Montenegrin Special Prosecutor’s Office however only decided to indict Zmajevic for four civilians’ deaths instead of the initial seven he was accused of when he was arrested in August 2016.

Even those four hang on razor-thin evidence.

The key witness, Damir Novic, who was also among the men initially arrested alongside Zmajevic for looting, has a history of mental illness.

Novic’s testimony accusing Zmajevic of the killing of three members of the Haziri family entirely contradicts the autopsy report of the Serbian police forensics department in Gjilan/Gnjilane and also contradicts the testimony given by a member of the Haziri family who survived the killing of his parents.

Another witness for the prosecution is a former Yugoslav Army lieutenant who says he witnessed Zmajevic killing an Albanian shepherd, even though none of the other troops who were there have confirmed what he said he saw, and his account differs from the evidence given by the victim’s son.

One of the only things that all the former Yugoslav Army soldiers who are now witnesses against Zmajevic agree on is that he acted like a mentally disturbed and psychopathic person while he was on deployment.

The witnesses also agree that Yugoslav Army commanding officers instructed them to make no difference between Kosovo Albanian civilians and KLA ‘terrorists’, as they were all the same.

Missing files

Another problem with the case is that Serbia failed to send Montenegro’s special prosecutor the results of paraffin glove tests for gunfire residue and other expert reports to prove that Zmajevic was the one who killed the villagers.

The unofficial explanation is that the files have gone missing, but Montenegro’s special prosecutor decided to proceed with the case anyway.

The people who were killed were mainly prominent villagers in Zegra/Zheger, among them a local leader of the Democratic League of Kosovo party.

Villagers claim that the killings were intentional and well-planned by the local Serb police and ruling Socialist Party leaders, abetted by local Serbs.

Charges were filed to the Gjilan/Gnjilane prosecution in 2005 against a number of local Serb strongmen who allegedly planned and orchestrated the extortion, looting, killing and expulsion of the ethnic Albanian majority in the village, which had a large and wealthy diaspora in Switzerland and hence was able to pay substantial ransom and protection money to local police and city hall.

In the charges sent to the Gjilan/Gnjilane prosecutors, Vlado Zmajevic was not mentioned, however.

The Serbian judiciary has remained quiet about these accusations.

At the Hague Tribunal, generals Lukic, Lazarevic and Pavkovic each claimed credit for himself for the arrest of Zmajevic and the other suspects and for their allegedly swift conviction.

In fact, Zmajevic was never even tried in Serbia, while the other six were quietly acquitted behind closed doors.

Many believe that Serbian prosecutors are now happy that their Montenegrin colleagues have been left to deal with this messy case, with its paucity of evidence, and have been rejoicing at the fact that Zmajevic’s prosecution has been transferred away from Belgrade.

Because, in the end, Serbia will not bear any blame for the failure of another war crimes case in Montenegro.

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